A Tennessee law prohibits transgender minors from receiving gender transition surgery and hormone therapy. Professor Kurt Lash of the University of Richmond and David Gans of the Constitutional Accountability Center join Jeffrey Rosen to debate whether the law violates the Equal Protection Clause of the 14th Amendment.
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This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Yara Daraiseh, Gyuha Lee, Samson Mostashari, and Cooper Smith.
Participants
Kurt Lash is the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond. He is the founder and director of the Richmond Program on the American Constitution and wrote a brief in support of the respondent in U.S. v. Skrmetti. He is currently working on a forthcoming book: A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.
David Gans is director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. He is an experienced constitutional litigator and scholar, and, on behalf of the CAC, authored the brief in support of the petitioner in U.S. v. Skrmetti. Gans joined CAC after serving as program director of Cardozo Law School’s Floersheimer Center for Constitutional Democracy.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- U.S. v. Skrmetti, Supreme Court oral arugument (audio via C-SPAN; transcript)
- Kurt Lash, Brief of Professor Kurt T. Lash as Amicus Curiae in Support of Respondents, U.S. v. Skrmetti
- David Gans, Brief of Constitutional Accountability Center as Amicus Curiae in Support of Petitioner and Respondents in Support of Petitioner, U.S. v. Skrmetti
- Bostock v. Clayton County (2020)
- Geduldig v. Aiello (1974)
- Loving v. Virginia (1967)
Excerpt from Interview: David Gans asserts that the 14th and 19th Amendments affirm gender equality and urges the Court to reject deference to states on sex-based discrimination.
David Gans: No, I think there are, from framers, some affirmations that this means equal rights for all. It's balanced by, and Kurt references this when it comes to voting rights. The 14th Amendment in section 2 puts a penalty of reduced congressional representation on states that disenfranchise its male inhabitants. I mean the 14th and 19th Amendments are very much amendments in conversation. Women's rights advocates kind of cheer on the 14th Amendment's embrace of equality for all persons and affirm the ideal of equal rights that is very much front and center in the 14th Amendment, and that we still cherish today, but they're outraged by writing the word mail into the Constitution. And you have half a century of debates at all levels in the States with a number of different constitutional amendments.
It ends up with the 19th Amendment being added to the Constitution in 1920. And essentially the women's rights activists talk about sort of taking male out of the Constitution with the 19th Amendment. So these two amendments are very much related. If you look at the text, the 14th Amendment does affirm equality for all persons, and the 19th Amendment I think kind of underscores that. I mean, one, it is about voting rights and it does really revolutionize our democracy. But when you talk about sort of sex stereotyping, it's very much about sex-based judgments about women and women's reproductive biology. And so the idea that if it's about biology, it's benign is really false from our constitutional history. There was the idea that you see in debates kind of stretching from the 14th Amendment through the 19th Amendment is this idea that women's proper roles because of their reproductive biology is to bear and raise children to perform the role of life and mother.
You have kind of the Supreme Court at least certain justices, including some of the justices who were ready to give the 14th Amendment a more fulsome reading in other contexts. Saying this sort of puts women in a place of second class citizenship, and I think the 19th Amendment is a response. So when you read the two amendments together, that is an affirmation of gender equality. And I think it supports what the court has done in its 14th amendment jurisprudence, which is to say that sex-based laws they're not forbidden in all circumstances, but they require the hard look of heightened scrutiny, which wasn't done here. I mean, in terms of deference to state medical regulation, I mean at the time of the 14th Amendment that was a huge issue. One of the things that Congress was concerned at the time was access to medical care for African-Americans freed from bondage in the context of huge outbreaks of smallpox. And so it wasn't that, I don't think there's any sort of constitutional history that sort of says when the state is regulating, medically, you get a free pass from constitutional rights and you're allowed to write into the law provisions that impose facial discriminations, which is what I think the statute does. So I don't think you can simply say, well, this is medical. They get a free pass.
And I think if you look at what the Roberts Court has done, there are many areas in which we are having evolving debates. And there are, I mean, you can see it in the 2nd Amendment context where the court is very willing to sort of second guess what states are doing. I think the question is, is the 14th Amendment gonna be treated as a poor relation in this case? And will the court sort of say, look, when it comes to this kind of explicitly sex based discrimination written into the face of law, will we just say, we defer to the states? And I hope the court doesn't go down that road because I think we've seen time and time again, that just means that states are given permission to discriminate against the powerless and the marginalized. And that really cuts against the reasons we have the 14th Amendment.
Excerpt from Interview: Kurt Lash argues that the Court's deliberation on transgender issues focuses on whether such cases involve sex-based discrimination or if transgender individuals constitute a quasi-suspect class.
Kurt Lash: In fact, I think it may be the key portion of the oral argument. I have a different perspective than David regarding the court's approach to looking at these laws as sex-based classifications. I came away from the argument thinking that there will be no more than two votes that will view this as sex-based classification. I think there was very little, there was a lot of conversation along those lines, but ultimately I think that Kagan really represented the key, a fulcrum on the court when Kagan said, "Isn't this being, really formalistic by focusing on a particular word in the text of the statute and trying to make this about sex discrimination when nobody really thinks this is about sex discrimination at all."
This is about transgender issues. This is about a new issue that's currently in debate and under discussion involves new medicine, new procedures, new understandings of risks on both sides, risks of having transition procedures and not having those procedures. And so I think most of the court really is very skeptical of the idea that this should be treated as sex discrimination. And in particular, I don't think that anyone who joined the Dobbs decision is going to undermine the Dobbs decision by treating this as a sex-based classification. So I actually think that there's a rock solid majority that is just gonna cite Geduldig and Dobbs on that particular point. So I think Kagan recognizes that and knows that if there's any leeway in a position that justice Kagan would believe would be more appropriate and more progressive, it would be to view this as indeed having to do with the transgender population and whether or not that population should be viewed as a protected class, a quasi protected class.
And justice Barrett also wanted to talk about that as well, about whether or not transgender met the jurisprudential indicia of suspect classes. Had they faced jury discrimination in the past? Alito gets into conversations about political power, about immutability, very interesting exchange with lawyer Strangio and Alito on immutability with the plaintiff's lawyer again talking about, well, there do seem to be biological, stable biological immutable aspects to it, but Alito then pushed back and wanted to talk about gender fluidity, which is another classification under discussion, and is part of the debate around transgender issues where you would move back and forth and sometimes not occupy either male or female categories as socially constructed.
And then there's also the issue of detransition, and I think people should be very attentive to a question that was asked over and over again. I think by both Alito and Justice Thomas, and maybe by Chief Justice Roberts as well, they pressed both lawyers for the plaintiffs as to whether or not they thought de-transitioners were real. And the lawyers that there really was a group who were transgender, but then de-transitioned or sought to live lives in accordance with their biological sex. And the lawyers conceded, yes, that is a group. And for Alito that kind of ended the discussion of immutability. And at that point he said, "Well, then it's not immutable." So all of those questions and all of those discussions were focused on whether or not the court should, even if they uphold the Tennessee law, whether or not they should do so in a manner that recognizes transgender's quasi-suspect group.
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